OSJCL Amici: Views from the Field

Dean v. United States

Issue: When a defendant accidentally discharges a firearm during a crime of violence or drug trafficking, is it still subject to a ten-year sentencing enhancement under 18 U.S.C. § 924(c)(1)(A)(iii)?

Background: On November 10, 2004, Christopher Michael Dean robbed a bank while carrying a pistol. While Dean was behind the counter, quickly grabbing money from a drawer, he accidentally discharged his gun into his right hand. Dean argues that his conviction was erroneous because § 924(c)(1)(A)(iii), which enhances the sentence of a defendant who discharges a firearm, includes an intent element.

Abuelhawa v. United States

The argument will be heard on March 4, 2009.

Issue: When a person uses a cell phone to buy drugs for personal use, which is a misdemeanor, can he also be charged with the separate crime of using a phone to facilitate the sale of drugs, which is a felony?

Background: On several occasions, Salman Khade Abuelhawa called a drug dealer to purchase a gram of cocaine. Federal agents intercepted these phone calls, arrested Abuelhawa, and charged him with a misdemeanor for purchasing drugs for personal use and a felony for using a phone to facilitate the sale of drugs. The defendant argues that it is unreasonable to transform a misdemeanor into a felony simply because the crime was facilitated through a cell phone, rather than face-to-face.

District Attorney’s Office v. Osborne

The argument will be heard on March 2, 2009.

Issue: Does the Due Process Clause give a defendant the right to access a state’s biological evidence after he has been convicted?

Background: In 1994, William Osborne was convicted of assault and rape. While he did not match the victim’s description of the perpetrator, he was convicted because his DNA matched the DNA found in the condom that was used in the crime. However, the type of DNA used to match Osborne to the condom is found in one out of every six or seven African-Americans. Now Osborne wants access to the DNA so that he can use a more reliable DNA test to attempt to prove his innocence.

District Attorney’s Office v. Osborne

The argument will be heard on March 2, 2009.

Issue: Does the Due Process Clause give a defendant the right to access a state’s biological evidence after he has been convicted?

Background: In 1994, William Osborne was convicted of assault and rape. While he did not match the victim’s description of the perpetrator, he was convicted because his DNA matched the DNA found in the condom that was used in the crime. However, the type of DNA used to match Osborne to the condom is found in one out of every six or seven African-Americans. Now Osborne wants access to the DNA so that he can use a more reliable DNA test to attempt to prove his innocence.

Flores-Figueroa v. United States

Issue: Can a defendant be convicted of “aggravated identity theft” under 18 U.S.C. § 1028(a)(1) when he used a false means of identification without knowing it belonged to another person?

Background: In 2000, Ignacio Flores-Figueroa, a Mexican citizen, used a fake social security number and resident alien card to work at a steel company in Illinois. These documents bore an assumed name and the social security and alien registration numbers did not belong to a real person. Six years later, Flores-Figueroa acquired new counterfeit cards, and this time the numbers belonged to a real person. Flores-Figueroa claims he was unaware of this.

Rivera v. Illinois

Issue: Does a criminal defendant’s conviction need be automatically reversed when the court erroneously denied his preemptory challenge, which resulted in a challenged juror being seated?

Background: Michael Rivera was charged with two counts of first degree murder and sentenced to 85 years of incarceration. At the defendant’s trial, he raised a preemptory challenge to a juror being seated, but the trial court dismissed that challenge when it, sua sponte, raised a challenge under Batson v. Kentucky. The lower court agreed, but did not hold that this was reversible error.

Maryland v. Shatzer, Sr.

Argument granted on January 26, 2009.

Issue: Does Edwards v. Arizona, which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, apply to an interrogation that takes place three years after the suspect has made his request?

In 2003, Michael Shatzer allegedly sexually abused his three-year-old son. When police tried to question Shatzer - who was already in jail for another offense - about the offense, he refused to give a statement, telling them that he did not want to talk without an attorney present. The case stalled until 2006, when police re-opened the case and questioned Shatzer. Now Shatzer is arguing that his interview responses should be suppressed under Edwards v. Arizona.

McDaniel, Warden v. Brown

Background: Fourteen years ago, Troy Brown was convicted of sexual assault. DNA evidence was the primary evidence in the case. The District Court reversed his conviction, finding that the DNA information was false and the additional evidence was not sufficient to establish guilt. The Nevada Attorney General is arguing that, under Jackson v. Virginia, a federal habeas court should not expand the record or consider non-record evidence to determine the reliability of the evidence at trial, so the lower courts should not have reversed the defendant’s conviction.

Four dead in shooting spree in upstate New York counties

A former hospital worker systematically shot and killed four people in upstate New York on Saturday, authorities in two counties said. Suspect went door-to-door in search of victims' residence, authorities say Christopher Glatz, 45, and wife Kim, 38, were shot "execution-style" in home. The couple's teenage children at suburban Rochester home but were not injured.

No one convicted of a crime in Alaska has ever been able to get a DNA test after trial, according to a brief filed by Mr. Osborne’s lawyers, and no state law says that prisoners must be given them. Next month, the United States Supreme Court will hear Alaska prosecutors argue that Mr. Osborne got a fair trial and does not have a constitutional right to such tests. The City of New York filed a friend-of-the-court brief in December that supported Alaska’s position. The city does not want the Supreme Court to declare that prisoners have a constitutional right to testing because New York already has a statute that allows it.

Del. Onzlee Ware sponsored a bill to help restore voting rights to nonviolent felons. Without hearing out its sponsor, a House of Delegates committee voted down a proposed constitutional amendment that would allow the General Assembly to pass a law restoring the voting rights of individuals with non-violent felony offenses who have completed their sentences.

State law finally would have a definitive list of 70 felonies that disqualify from voting people convicted of the crimes, if a bill cleared by a legislative panel becomes law. Alabama's constitution disqualifies from voting anyone convicted of a "felony involving moral turpitude." But state law has no comprehensive list of those felonies. A bill sponsored by state Rep. Jimmy Martin, D-Clanton, would write into the law a list of felonies that involve moral turpitude.

An autopsy is expected to determine what caused a man to die after being pepper-sprayed and shocked with a Taser gun by Los Angeles County Sheriff's deputies. The man "advanced on the deputies in a threatening manner," prompting them to use pepper spray and at least one Taser stun gun on him, Spencer said. After the man was handcuffed, deputies realized he wasn't breathing. They began CPR and paramedics were called but the man was pronounced dead at a hospital.

Illinois Republican leaders on Sunday called for a perjury investigation of Sen. Roland Burris, questioning whether he "purposely deceived the public" last month by failing to tell state lawmakers that then-Gov. Rod Blagojevich's brother solicited him for campaign cash. Burris says he mentioned open Senate seat as reason he couldn't contribute. Burris didn't mention conversation to state House panel investigating Blagojevich.

California may have to cut prison population by 40 percent

Federal judges tentatively ruled on Monday that California must reduce the number of inmates in its overcrowded prison system by up to 40 percent to stop a constitutional violation of prisoners' rights. Gov. Arnold Schwarzenegger immediately promised to appeal the case. Those who would be released would be very low risk, says head of Prison Law Office.

A man who stabbed his mother to death while on crack cocaine binge was spared lethal injection after Ohio’s governor commuted his sentence to life in prison. Family recommended commutation because they suffered enough. He will be sentenced to 25 years to life in prison, but could be released.

Prostitution 101

A 35-year-old Ohio teacher was arrested for misdemeanor prostitution and felony unauthorized use of property. The prostitute and teacher sometimes would skip class and use school computers to facilitate her “side” job.

There may be new information on the 1982 Tylenol-related deaths that led to the introduction of the now-standard tamperproof packaging. Federal agents searched the home of James W. Lewis, who is linked to the fatal poisonings and the FBI in Chicago said authorities are reviewing evidence in the deaths, citing “advances in forensic technology.” Lewis served more than 12 years in prison for sending an extortion note to Johnson & Johnson demanding $1 million to "stop the killing." He also served two years out of a 10-year sentence for tax fraud and was later charged with rape and kidnapping. No one has been charged yet in the current investigation.

As part of Gov. Strickland’s budget plan, prisoners will be able to earn credits to reduce their jail sentence, thereby reducing the prison population. The prison population is currently 32 percent over designed capacity. Rather than awarding credit for trouble-free behavior as under the old plan, the new plan would subtract seven days a month from the sentences of inmates who are actively involved in education, vocational and treatment programs. The plan is projected to reduce the prison population by 2,644 beds and save $11.4 million annually.

More women are robbing banks, and unlike their male counterparts who favor using weapons, women have been using notes. According to a witness statement, Jessica D. McNeil, who faces bank robbery charges in Long Island, N.Y., placed a note on the teller's counter that read, "I have a gun. I will shoot you. Give me all your money. Put in bag." Police say that the motivation to hold up banks is the same for women and men: addiction to drugs.

America's outgoing CIA Director, Michael Hayden, says violence in Mexico will pose the second greatest threat to U.S. security next year, right after Al Qaeda. Focused on the drugs and migrants who flow into the U.S., the flow of weapons into Mexico is often overshadowed. Moreover, border control is much weaker going south than going north. In an unsuccessful cartel rescue attempt, Mexican authoritie3s captured 540 assault rifles, more than 500,000 rounds of ammunition, 150 grenades, 14 cartridges of dynamite, 98 fragmentation grenades, 67 bulletproof vests, seven Barrett .50-caliber sniper rifles and a Light Anti Tank (LAW) rocket.

A federal judge unsealed hundreds of pages of court documents to reveal positive drug tests linked to Barry Bonds. In the court documents, prosecutors say Bonds tested positive in 2000 and 2001 for the steroids methenelone and nandrolone. Prosecutors want to use those test results to show Bonds lied to a grand jury in December 2003 when he told them that he never knowingly used steroids.

According to one of the dozens of state attorneys general who pressure MySpace.com to increase its safety standards, MySpace.com has identified and removed 90,000 convicted sex offenders site. Although MySpace.com initially cited federal privacy laws in refusing to comply with the subpoena, the company has since used a tool known as Sentinel SAFE to track online sex offenders. MySpace's chief security officer, Hemanshu Nigam, stated that he hopes that Facebook will do the same.

Law School and The Real World Practice of Law

So they send you to law school for three years to learn how to be a lawyer. In those three years you learn to think like a lawyer, act like a lawyer, and ultimately be a lawyer; or so they say. Law school is the breeding ground for new lawyers and is undoubtedly a prerequisite to actually practicing law; but does law school really teach us how to actually be lawyers or just how to pass the bar exam so that we can legally practice law? Where do we learn how to be an actual attorney, in law school or in the real world practice of the law? We have students weigh in on the issue below and will continue this discussion with insight from current prosecution and defense practitioners.

Kate Loudenslagel on Law School and The Real World Practice of Law

Pulling Faces & Hitting Aces: The Dos andDon’ts of Courtroom Decorum

Kate LoudenslagelWashington and Lee University School of Law ‘09

Most law students anxiously await that day when they finally become practice certified and are able to appear in court, either through internships, clinics, or practica. The thrill of being the “lawyer on record,” however, can quickly be replaced with fear if not fully prepared. This short list of dos and don’ts may seem like commonsense to most, but I found them extremely helpful this past summer when I interned for a state prosecutor’s office. Teachers always say you cannot learn Evidence in class but through experience. Well, I am here to tell you that you can learn courtroom etiquette—or at least some of it—through this short list.

Pavan V. Parikh on Law School and The Real World Practice of Law

Illogical juries: How I learned to stop caring and love the system

Pavan V. ParikhSaint Louis University School of Law

“Not guilty.” Like arrows into St. Sebastian, these two words strike pain and fear into the heart of any prosecutor. At first you think of failure. Law school prepared you for that. Law school taught you that not everyone gets an A. Law school taught you that only because you can fail you can succeed. It teaches you to channel that pain and fear into the next semester, the next paper, the next exam. It makes you stronger.

Chambers v. United States

Decided on January 13, 2009.

Background: The defendant faced a conviction of the Armed Career Criminals Act, which requires a fifteen year sentence when a defendant possesses a firearm after committing three violent felonies or serious drug offenses. One of the defendant’s past offenses was a state conviction for escape from prison, which occurred when the defendant failed to report to prison. The defendant argued that the conviction was not “violent.”

Holding: The escape conviction did not qualify as a “violent felony” because it did not involve physical force and was a relatively passive offense that did not involve conduct that presented a risk of physical injury to another.

Herring v. United States

Decided on January 14, 2009.

Background: When the defendant, Bennie Herring, returned to a police impound lot to retrieve some personal possessions, an officer at the lot inquired to surrounding counties about whether Herring had any outstanding warrants. An officer in another county erroneously stated that his county had an outstanding warrant on Herring, so the officer at the lot stopped Herring, searched him, and found methamphetamines. Later, the officer learned that Herring actually did not have any outstanding warrants. At trial, Herring moved to suppress the evidence obtained in the search, arguing that the search was unlawful because there was no warrant.

Holding: The Court held that the evidence should not be excluded because the search stemmed from an isolated incident of negligence, rather than systematic error or reckless disregard of constitutional requirements. Here, the deterrent effect did not outweigh the substantial cost of letting a guilty and possibly dangerous defendant go free.

Oregon v. Ice

Decided on January 14, 2009.

Background: Thomas Ice was convicted of burglary and sexual abuse when he entered a neighbor’s apartment and sexually abused one of their children. Ice was ultimately convicted on six offenses and Oregon law states that sentences imposed for multiple crimes must be concurrent, unless the offenses arose out of separate instances or resulted in separate harms. The judge found that the convictions arose out of separate instances and ordered consecutive sentences. But Ice argued that a sentence determination that results in a longer sentence must be based on a jury’s factual findings, not a judge’s.

Holding: The Court held that the Sixth Amendment does not prohibit states from allowing judges, not juries, to find the facts necessary to impose consecutive sentences.

Waddington v. Sarausad

Decided on January 21, 2009.

Background: Cesar Sarausad, the defendant, drove the car in a drive-by shooting in which another passenger shot and killed a teenager. The defendant was convicted of second-degree murder based on an accomplice-liability theory “in for a dime, in for a dollar.” The defendant argued that the court erred by allowing the prosecutor to use this theory, because it could have led the jury to convict him by finding that he had simply anticipated that an assault would occur.

Holding: The Ninth Circuit erred by granting habeas relief to the defendant because the state court decision did not result in an “unreasonable application of clearly established federal law.” The state courts’ conclusion that the jury instruction was unambiguous had not been objectively unreasonable.

Pearson v. Callahan

Decided on January 21, 2009.

Background: The defendant was arrested for distribution of drugs when he sold drugs to an undercover informant who the defendant invited into his house, but his conviction was vacated because police entered his house without a warrant. After his release, the defendant brought a §1983 action against the police who entered his house without a warrant. The defendants argued that they were protected by “consent once-removed” doctrine, which permits warrant-less police entry when the defendant has invited an undercover officer into his home. However, this doctrine does not apply when the individual invited into the home is simply an informant, not an undercover officer.

Holding: The police were entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional.

Spears v. United States

Per curium opinion issued on January 21, 2009.

Background: Steven Spears was convicted of conspiracy to distribute cocaine. The sentencing guidelines required Spears’ sentence to be calculated based on a 100:1 ratio of crack cocaine to powder cocaine quantities. But the District Court believed that this calculation yielded an excessive sentence, so it recalculated his sentence based on a 20:1 ratio of crack to powder cocaine.

Holding: The Supreme Court held that the District Court had authority to replace the sentencing guidelines’ ratio with its own because the guidelines are merely advisory.

Arizona v. Johnson

Decided on January 26, 2009.

Background: Lemon Johnson was stopped by police for a minor vehicular infraction. At the time of the stop, the police officers had no reason to suspect that any of the car’s passengers were engaging in criminal activity. The officers still asked Johnson to get out of the car and patted him down. During the frisk, officers discovered a firearm and Johnson was charged with unlawful possession of a firearm. He argued that the pat-down violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Holding: The pat-down did not violate the Fourth Amendment because traffic stops of this type are especially dangerous to police officers, and the interest in officer safety outweighs the additional intrusion of requiring the driver to exit the vehicle and submit to a search.

Van de Kamp v. Goldstein

Decided on January 26, 2009.

Background: Goldstein had been convicted of murder, but he was later released because the testimony of a key witness, a jail-house informant, proved to be unreliable. The prosecution allegedly knew about this unreliability. After he was released, Goldstein brought a §1983 claim against the prosecution’s supervisors, claiming that they failed to properly train the prosecutors about their duty to communicate impeachment information.

Holding: The court held that the district attorney and chief deputy district attorney were entitled to absolute prosecutorial immunity and remanded with instructions to dismiss Goldstein’s claim.

Nelson v. United States.

Per curium opinion issued on January 26, 2009.

Background: In this case, Nelson was convicted of conspiracy to distribute and possess with intent to distribute cocaine. The court sentenced him to 360 months in prison, calculated under the U.S. Sentencing Guidelines. The court reasoned that a sentence within the guidelines is presumptively reasonable.

Holding: A sentencing court should not presume that a sentence within the U.S. Sentencing Guidelines range is reasonable. This presumption should only be used by appellate courts. The sentencing guidelines are not mandatory to the sentencing court and it should not presume that they are reasonable.

Kansas v. Ventris

The argument was heard on January 21, 2009.

Issue: The issue here is if a defendant makes statement tin the absence of a knowing and voluntary waiver of the right to counsel, whether prosecutors may use the statement to impeach a witness, as opposed to during its case-in-chief.

Background: In this case, Ventris and his girlfriend were both accused of murder and robbery and they each blamed the crimes on the other. When Ventris was in prison awaiting trial, he told his cell-mate that he was the one who committed the crimes. At trial, Ventris testified that his girlfriend committed the crimes, and the prosecutor wanted to allow the cell-mate to testify for the purposes of impeaching the defendant.

Corley v. United States

The argument was heard on January 21, 2009.

Issue: The issue in this case is whether federal law permits the suppression of a voluntary confession made more than six hours after arrest but before presentment to a magistrate, as a consequence of unreasonable delay in presentment.

Background: The Federal Rules of Criminal Procedure require prompt presentment, which means that an arrested defendant must be taken to a magistrate judge without unnecessary delay. Under the Omnibus Crime Control and Safe Streets Act, a confession is potentially inadmissible if it was given by the defendant more than six hours after the defendant’s arrest. In this case, the defendant was arrested for robbery and signed a written confession twenty-nine hours after his arrest, and before he was brought before a magistrate.

Boyle v. United States

Issue: The issue in Boyle is whether, under the Racketeer Influenced and Corrupt Organizations Act, an “enterprise” requires the existence of an ascertainable structure.

Background: The defendant was convicted of racketeering and conspiracy to commit racketeering, a violation of the RICO Act. At trial, the district court rejected Boye’s request to instruct the jury that an “enterprise” requires “an ongoing organization, a core membership that functioned as a continuing unit, and an ascertainable structural hierarchy.”

Knowles v. Mirzayance

Issue: The issue here is whether the defendant’s lawyer’s recommendation to withdraw an insanity plea constituted ineffective assistance of counsel for purposes of federal habeas law.

Background: When Alex Mirzayance was charged with first-degree murder, his attorney developed a defense plan where Mirzayance would first attempt to secure a verdict for second-degree murder, then try to prevail on an insanity defense. But, at the first stage, the jury found Mirzayance guilty of first degree murder. The attorney decided to withdraw the insanity plea because he believed that the first-degree murder conviction signaled that the jury believed the murder was premeditated, so the jury must have believed that Mirzayance was sane. But this reasoning was based on a mischaracterization of the law.

Vermont v. Brillon

The argument was heard on January 13, 2009.

Issue: The issue in this case is whether delays caused by a public defender can deprive a criminal defendant of his right to a speedy trial.

Background: Brillon was charged with aggravated assault and he already had three prior felony convictions, so he was facing a life sentence. While he was awaiting trial, his public defender made several continuance motions and the case was delayed for various reasons. The case had been delayed for three years when it was finally brought to trial.

Montejo v. Louisiana

Issue: The issue in Montejo is whether an indigent defendant must affirmatively accept the appointment of counsel to preclude future police interrogation in the absence of an attorney.

Background: This case arose when Jesse Montejo was questioned for his connection with the murder of Lewis Ferrari. When Montejo was being interrogated, he requested an attorney after five hours of interrogation, but almost immediately withdrew the request. During the interrogation, Montejo made a statement that amounted to a confession, but later he sought to suppress that statement, based on the fact that he was not represented by an attorney.

Harbison v. Bell

The argument was heard on January 12, 2009.

Issue: The issue in Harbison is whether the Terrorist Death Penalty Enhancement Act provides prisoners sentenced under state law the right to federally appointed and funded counsel to pursue clemency under state law, and whether a district court’s denial of such a request may be appealed without a certificate of appealability.

Background: The defendant, Edward Harbison, has been on death row since 1985, when he was convicted of first-degree murder for the murder of Edith Russell, a sixty-two year old woman. Harbison confessed to the murder in a taped statement, explaining that he believed she had a gun, but he later argued that the confession was coerced. In this case, Harbison is asking the court to allow counsel from the Federal Defender Services to represent him in his state clemency proceedings.

Hundreds of investigations of online child sexual exploitation and child pornography have been significantly delayed by backlogs at FBI cybercrime labs, according to a Justice Department report released Friday. Audit finds 353 requests awaiting digital evidence analysis. It takes up to 9 months to process some cases.FBI's Innocent Images Unit has handled more than 20,000 online cases since 1995.

Zacarias Moussaoui was sentenced to life in connection with September 11 attacks. The prosecutors say that Moussaoui's guilty plea came voluntarily. Lawyers for convicted September 11 conspirator Zacarias Moussaoui urged an appeals court panel Monday to throw out his guilty plea and grant their client a new trial because he did not have an adequate defense and lacked key information to defend himself.

As a presidential candidate, Obama promised to shut down the prison camp within the first 100 days of his presidency. A presidential order issued wisely extends the shutdown to no more than a year. The order also will close a network of secret CIA prisons, ban the harshest interrogation techniques and suspend military trials for detainees at Gitmo, as the U.S. naval base is known, pending further legal review by the Obama administration.

Illinois Impeachment Trial Proceeds Without Governor

Governor Rod Blagojevich's historic impeachment trial began Monday without its defendant, who has refused to participate because he says its rules are unfair. Blagojevich was arrested Dec. 9, accused of scheming to benefit from his power to name President Obama's replacement in the Senate. He was impeached by the House earlier this month on additional charges of circumventing hiring laws and defying decisions by the General Assembly.

A Saudi man who was released from Guantanamo after spending six years inside the U.S. prison camp has joined Al Qaeda's branch in Yemen and is now the terror group's No. 2 in the country, according to a purported Internet statement from Al Qaeda. The announcement was made this week on a website came as President Obama ordered the detention facility closed within a year.

The biggest fight for the mixed martial arts industry will not take place in any arena this year. Instead, it'll be in Albany. Lobbyists and industry executives try to persuade the Legislature to legalize the popular sport in New York state. Mixed martial arts is currently banned in New York. UFC failed to get it overturned last year. Similar debates have been playing out around the country, as the sport has surged in popularity: UFC officials also are making a push to allow MMA in Wisconsin, South Carolina and Massachusetts.

Budget woes prompt states to rethink prison policy

Governors, legislators and prison officials across the nation are making or considering policy changes that will likely remove tens of thousands of offenders from prisons and parole supervision. The pending and proposed initiatives could put into place cost-saving reforms that have struggled to win political support in the tough-on-crime climate of recent decades. Many states are seeking to send fewer offenders back to prison for technical violations of parole conditions.

A Kentucky high school football coach is being arraigned Monday on a reckless homicide charge in the heat-exhaustion-related death of one of his players. A grand jury indicted him on Thursday in the death of Max Gilpin, 15. The player collapsed August 20 during a summer practice and died three days later.

Restoring Rights

A Williamsburg resident urged other residents to contact lawmakers to make the restoration process for individuals with felony offenses less time consuming. Virginia is one of only two states that permanently disenfranchises all persons with felony convictions. Individuals with nonviolent offenses seeking restoration must wait three years after completing their sentence, while those with violent offenses must wait five years. demonstrates a lack of faith in our prison system.”

The Ohio State University | Michael E. Moritz College of Law | 55 West 12th Avenue | Columbus, OH 43210-1391 | (614) 292-2631
If you have trouble accessing this page or need to request an alternate format, please email the Moritz Law Webmaster PDF files in this site may require Adobe Reader to view (link opens in new window)